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Money for the Mountain

If the government has decided that Yucca Mountain is no longer a plausible storage facility for used nuclear fuel, then should you – and we mean you specifically - continue to pay into the Nuclear Waste Fund when there is no solution in place?

The Nuclear Energy Institute and several of its member companies filed suit in federal court [Monday] seeking suspension of the fee that consumers of electricity produced at nuclear energy facilities pay into the Nuclear Waste Fund for the federal government’s used nuclear fuel management activities.

The best way to put this is that government lacks a “used nuclear fuel management policy” and thus cannot put on a price on it which you, though your utilities, then have to pay. After all, there’s plenty of money already in the fund.

The Nuclear Waste Fund has a balance of more than $24 billion; however the administration’s budget request for fiscal year 2011 does not include any funding for the used nuclear fuel management program.

Or about $750 million a year - a lot of money. Suspending the fee hardly seems unreasonable until the industry knows how the government means to proceed.

The fund was created as part of the Nuclear Waste Policy Act of 1982, which specified that the government would take charge of used nuclear fuel by 1998 – which it didn’t do and still hasn’t done. Before being closed, the Yucca Mountain project was delayed by various legal actions taken by the state of Nevada and other parties. Although most such actions were knocked aside, that took time to do and deadlines fell aside in the meantime.

This week's legal action follows a lawsuit filed last week by state utility regulators – under the banner of the National Association of Regulatory Utility Commissioners (NARUC), that also seeks to suspend the fee.

"Since 1983, the nation’s nuclear-utility consumers have faithfully contributed almost $20 billion into the Nuclear Waste Fund [the rest of the $24 billion comes from interest], with the expectation that the spent-nuclear fuel would be safely moved and stored,” said NARUC President David Coen of Vermont in a prepared statement Friday. “Unfortunately, the federal government has failed to live up to its end of the bargain.”

All true. We’re not lawyers, so cannot comment much beyond presenting the information to you, but we’ll keep an eye on both the NEI and NARUC lawsuits to see where they lead.

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Anonymous said…

It also pays to bear in mind that this is only one of three separate but related issues now moving forward in the courts.

The issue covered in the post involves the ongoing requirement, as set forth in the Nuclear Waste Policy Act (NWPA), for utilities to make contributions to the Nuclear Waste Fund established under the NWPA.

Another issue involves ongoing and anticipated litigation stemming from the Department of Energy's (DOE) failure to begin taking possession of utilities' spent nuclear fuel by the date set forth in the NWPA. DOE was required, by statute, to begin taking possession in 1998, and has since been found in partial breach of this contractual obligation. The Department of Justice, which litigates these cases, is already responsible for paying (out of the taxpayer-funded Justice Fund) approximately $1.2 billion in damages to the utilities. That figure, based on anticipated future cases premised on full breach of contract now that Yucca Mountain is "off the table," is expected to total $50 to $100 billion in the end.

A third -- and perhaps crucial -- issue involves the legality of DOE's motion to withdraw its Yucca Mountain license application. The panel of NRC judges presiding over the Yucca Mountain proceeding issued a motion yesterday (which no one seems to be reporting) that essentially suspends the NRC's Yucca Mountain proceeding until the Court of Appeals rules on various petitions filed by Washington, South Carolina, and Aiken County, SC. These petitions seek to establish the alleged illegality of DOE's request for a withdrawal of its Yucca Mountain license application. NRC has correctly recognized that the Court of Appeals is the best venue in which to decide whether or not DOE, Secretary Chu, and the current administration can legally withdraw the application, and beyond that, whether NRC can even entertain such a motion.

This last turn of events is significant, and whatever decision arises out of it (assuming the Courts of Appeals take on the separate cases) will likely have an impact on the first two issues, and vice-versa.

At stake in every instance is the legal status and force of the NWPA, as well as the legality of canceling the project upon which all the issues depend.

"...but we’ll keep an eye on both the NEI and NARUC lawsuits to see where they lead."

In related news...

The federal lawsuits filed by the states of Washington and South Carolina, plus Aiken County, SC, questioning whether DOE has the legal authority to close down the program has resulted in the NRC's decision yesterday to not act on the Energy Department’s motion to withdraw Yucca Mountain's license application until the court system rules on related lawsuits.

And of course, today a new wrinkle was added to this already wrinkly legal fabric.

The "third" track mentioned in my first post is now, it appears, being contested by what may be the same team of DOE and NRC lawyers who submitted a brief to the Court of Appeals urging the Court to deny Aiken County's petition to intervene.

It is worth pointing out that the motion issued yesterday by the NRC judges presiding over the Yucca Mountain proceeding contains quite a bit of non-binding opinion on the issues raised by the parties in the Aiken County proceeding.

The NRC judges, for example, shot quite a few holes in the arguments offered by the team of DOE/NRC lawyers, including a fairly strong rebuttal of the assertion that Aiken County's petition should be rejected because the legal issue is "unripe" and involves no "final agency action."

In any case, the DOE/NRC legal team is now appealing the order to the NRC commissioners themselves, which strikes me as a bit cynical.

The NRC commissioners will be asked to overturn an order (not a final decision) issued by its own independent judges.

If this appeal has been prompted by politics, which I'm sure it has, and if the appeal is accepted and then ruled on by the commissioners in favor of DOE, I would worry that NRC's credibility as an independent and apolitical agency might suffer.

"If this appeal has been prompted by politics, which I'm sure it has, and if the appeal is accepted and then ruled on by the commissioners in favor of DOE, I would worry that NRC's credibility as an independent and apolitical agency might suffer."

Does anyone know how Obama's "Blue Ribbon Commission" is being funded? If it is being paid for by money from the Nuclear Waste Fund, then I think a case can be made for embezzlement or other criminal fraud. The NWPA authorizes expenditures for development of a national spent fuel repository, specifically Yucca Mountain. I am unaware of any language in the law that authorizes funding of a useless Commission. Expenditures for anything beyond those authorized by the Act, such as a political Commission, would likely be illegal and a misuse of public funds. Has NEI looked into this?

The Blue Ribbon Commission is not being funded from the Nuclear Waste Fund.

The BRC will issue an interim report by July 2011, with recommendations. If Congress chooses to ignore these recommendations, and thus leaves the current Nuclear Waste Policy Act as national law, then Nevada will need to keep paying its lawyers because the next Republican Secretary of Energy will resubmit the license application.

But there is a lot that could be improved with the current Nuclear Waste Policy Act (burying 63,000 t of used fuel is a lame idea). This BRC does have the opportunity to propose something better; let's hope they do.

I agree that we can do better than dumping partially-used fuel, but there will be something to dispose of even with partitioning and full actinide recycle. The heat loads and volumes will be significantly reduced, certainly, but there will still be the issue of where to put the unusable material.

There is more than enough capacity at Yucca Mountain to manage this reduced waste burden. It makes sense to me to keep that option on the table. It's already in the law. Some have suggested sending it to WIPP but that would require a change in the law to allow non-defense wastes to go there.

It will depend on the market. Right now it is cheaper to store/dump partially used fuel. If demand goes up and/or supply dwindles, then that may change.

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